Kathy Phillips seems an unlikely adversary for the Eastern Shore's poultrygrowing factory farms, an industry she calls "Big Chicken." She is 61 years old, an avid amateur surfer who moved to Ocean City for the waves in 1978. Phillips still bodyboards when she gets a break from her job as the Assateague Coastkeeper, the local representative of the nationwide nonprofit Waterkeeper Alliance. She is probably the only waterkeeper who's in the East Coast Surfing Hall of Fame.

But consider how she got there: She started as a volunteer for the Ocean City chapter of the Eastern Surfing Association, a pack of wave riders determined to convince people there really was decent surfing east of California. She ended up running the organization, which became an aggressive advocate for beach access and clean water. In 2006 Phillips ran for a seat on the Worcester County Commission, lost to a betterfinanced incumbent, and then went to work for the Assateague Coastal Trust, a local conservation group that also sponsors her other job as the Coastkeeper.

Phillips would like to stick to her home waters, patrolling the Atlantic side of the Delmarva Peninsula by truck, by boat, and occasionally from the passenger seat of another volunteer's airplane. But she couldn't turn her back on the nearby rivers meandering through Chicken Country. The Pocomoke and Wicomico rivers are listed by the Environmental Protection Agency as "impaired" by pollutants from farm runoff—a slurry of fertilizers, herbicides, and animal waste that rainfall washes into the rivers, and from there into the Chesapeake Bay. These rivers deserve their own waterkeepers, Phillips says, but no organization has stepped forward to sponsor those positions. So she began patrolling the area when she could, studying local issues and sitting in on meetings. Before long, she'd become the area's unofficial clean water cop.

"Our mission in life is to stop sources of pollution and keep the water swimmable, fishable, and drinkable," Phillips says of the sixteen waterkeepers in the Chesapeake Bay region. "And we'll do it by whatever means necessary."

The waterkeepers don't fit into any existing niches in the Chesapeake Bay restoration hierarchy. They don't belong in the circle of academic and government scientists who put out progress reports on the 27year-old effort to save the bay. When legislators and leaders of the big environmental groups get together to work out compromises between Maryland's ecology and economy, the waterkeepers usually aren't invited. But Phillips says she learned something important from her failed run for the county commission: "I can do a lot more from the outside," she says, "being able to be the thorn in their side."

And a thorn may be just what the situation requires. After twentyseven years and billions of dollars spent, Chesapeake Bay restoration is an obvious failure. The program once touted as a model of partnership among the bay states and the federal government has, at best, kept the bay's plight from getting worse in the face of rampant population growth in the watershed. Virtually all the experts admit that the bay is not much better off than it was twenty-seven years ago, and in some respects its condition is worse. "It's an abysmal record," says J. Charles Fox, senior advisor for the Chesapeake at the EPA. "We have a long way to go."

But here's a twist: Now that nobody's in denial anymore, there are glimmerings of hope. Members of the bay's old guard say they sense a new determination at the EPA, which released a sweeping new restoration strategy in May. If the agency's leadership stays involved, if the old guard remains outspoken, if the politicians keep their campaign promises, maybe the bay states can finally make good on their pledge to bring back the Chesapeake's lost abundance. Maybe—but only if citizens keep the pressure on.




The original pact to clean up the Chesapeake was a onepage document that made a simple promise: "to improve and protect the water quality and living resources of the Chesapeake Bay." Called the Chesapeake Bay Agreement, the pact was signed in December 1983 by the governors of Maryland, Virginia, and Pennsylvania, the mayor of Washington, D.C., and the head of the EPA. Later, those same leaders followed up with more pledges. They would dramatically reduce the amount of nitrogen, phosphorus, and other pollutants flowing into the bay from sewage plants, industrial outfalls and smokestacks, farms and feedlots, developed lands, and other sources. The bay's waters would be clearer and richer in oxygen and would support healthy populations of native plants and animals. Underwater grasses would flourish, providing nursery areas for young fish and crabs. Commercial fisheries would thrive, with plenty of seafood left over for recreational fishing.

It was up to the bay states to make this vision a reality by working together, imposing new laws on themselves, and enforcing the new laws and regulations with help from the EPA. If that sounds laughably idealistic now, it didn't at the time. The bay program was born just as a golden age of environmental politics was waning. In the 1970s, Congress passed a fistful of bills that called on the states to protect the ecology first and only then look out for the economy. Maryland's leaders made the same choice in the early 1980s with the passage of the Critical Areas Act, one of the toughest landuse laws in the country. "When I'd go around the state, for example, in parades, people would yell, ‘Save the bay! Save the bay!' People were quite enthusiastic," says former Maryland governor Harry Hughes, who was a driving force behind both the Critical Areas Act and the Chesapeake Bay Agreement.

Community groups planted bay grasses and buffer strips of native trees. Schoolchildren helped environmental groups grow oysters—not for their taste, but for their natural watercleansing abilities. Fueled by a spirit of volunteerism, in the neighborhoods and the watershed associations, things seemed to be working. In the statehouses and the halls of Congress, not so much.

The problem was that success demanded strict enforcement of existing environmental laws, along with implementation of tough new ones. The federal Clean Water Act delegated those critical tasks to the states. But the state environmental agencies were chronically underfunded and outgunned by the industries they were supposed to be regulating—industries with money, influence, and cadres of lobbyists. Time and again, businesses and property owners convinced the legislatures to water down new laws and thwarted attempts to enforce existing ones.

The Clean Water Act gave the EPA the power to take direct action against polluters, as well as to punish the states if they failed to follow the law by taking away federal funds or by taking over some of the states' regulatory powers. "We really expected some help from the EPA," Hughes says. But the federal agency rarely used its power, preferring to act as an advisor, not an enforcer.

The Chesapeake Bay Agreement was supposed to restore the bay by 2000. But over the years, goals slipped and deadlines passed, to be replaced by new goals and deadlines that also went unmet.

Today the bay's situation is murkier than it was when the cleanup effort began. In 1985, about onethird of the bay met the Clean Water Act's standard for clarity; in 2007 less than one-eighth of the bay met the standard. In the 1980s, about 40 percent of the bay's deepest waters formed "dead zones," so low on oxygen that aquatic creatures fled or died. Between 2006 and 2008, more than 80 percent of the deep waters were summertime dead zones. The Chesapeake Bay oyster harvest plummeted from more than 20 million pounds in the 1970s to less than 200,000 pounds in 2003. Oysters feed by filtering tiny organisms from the water, so as their population dwindled the bay lost a vital ally in the fight against pollution. The blue crab harvest also fell to historic lows. The nadir came in 2007, when watermen caught roughly one-third the crabs they had caught before bay restoration began. That year, the U.S. Secretary of Commerce declared the Chesapeake Bay blue crab fishery an economic disaster. (See "Hard Times in Crab Country," Nov. '08 Urbanite.)

Conditions are a little better this year. After two years of strict new regulations that sharply reduced crab harvests, surveys show that numbers are up. And in midMay, an annual report card from the University of Maryland Center for Integrative Environmental Research gave the bay's overall health a score of 45 percent, or a C, compared with last year's 40 percent, a C-. Gov. Martin O'Malley told reporters the improvement is a glimmer of hope. But the bay is still on life support, he said.

In fact, some scientists say the bay that H.L. Mencken called an "immense protein factory" is becoming an immense jellyfish factory, as species that do well in polluted waters take the place of the valuable fish and shellfish that used to thrive in a healthy Chesapeake. There are summers when, on the most oxygenstarved rivers of the Western Shore, the coffee-colored water is so dense with jellyfish that you'd have a hard time tossing a pebble into the water without hitting one.

Many of the cleanup effort's longestserving insiders have run out of patience. Fox, a longtime bay advocate and former Maryland Secretary of Natural Resources, lambasted the program's voluntary approach before accepting his current post. "The straightforward path to saving the bay can be summed in three words," he wrote in a 2005 essay in the Baltimore Sun. "Enforce current law." In January 2009 the Chesapeake Bay Foundation, the region's largest and most influential environmental group, set aside its long history of trying to solve the bay's problems through negotiation and sued the EPA in federal court, alleging that the lack of progress constitutes a decades-long failure to enforce the Clean Water Act. Then in December more than three dozen senior scientists, former elected officials, and other members of the environmental old guard spoke out in a letter to the EPA, calling the cleanup effort "insufficient and failing."




The tide seemed to turn for environmentalists when, in March 2009, the Obama administration's new EPA administrator, Lisa Jackson, appointed Fox to the new post of senior advisor for the Chesapeake. Two months later, Obama issued an executive order instructing federal agencies to pursue more aggressive action to restore the bay. And exactly one year after that, on May 12, 2010, Jackson and a phalanx of cabinet members unveiled the federal government's new restoration strategy.

The new plan envisions a revived bay in the midst of a revitalized landscape of cities, farms, parks, and nature preserves by 2025. It would place new or more stringent pollution control measures on 4 million acres of farmland; preserve 2 million acres of land from development, including almost 700,000 acres of forest; restore oyster populations in twenty rivers; and give the region's cities a forceful nudge in the direction of bayfriendly infrastructure. The plan requires an "unprecedented" degree of cooperation from scores of government agencies in six states and Washington, D.C. Most important, it requires these governments to do what they have not been able to do consistently in the past twenty-seven years: strictly enforce existing antipollution laws and impose tough new ones. "We've made it very clear that there will be a series of consequences for individuals as well as state governments if they continue to fail to clean up bay pollution," Fox says.

The Chesapeake Bay Foundation dropped its lawsuit in May when the EPA agreed to a settlement that makes many elements of the plan enforceable. But the foundation does not endorse the new plan, and many environmentalists remain skeptical. "Enough is enough!" says former state senator Gerald Winegrad, a professor at the University of Maryland School of Public Policy and a longtime environmental gadfly. "Hey, instead of an executive order, start taking action. Start filing lawsuits!"
Which brings us back to Kathy Phillips. And requires us to talk about an indelicate subject: chicken shit.

If you want a good example of the reasons why bay cleanup has circled the same problems year after year like a snake eating its tail, look no further than the problem of animal waste. It's not the only source of bay pollution, but it is one of the largest ones: The EPA estimates that animal manure accounts for onefourth of the bay's excess nitrogen and phosphorus.

The U.S. Poultry and Egg Association says it takes fortyseven days for a chick to reach market size. In that time, each bird produces 2 pounds of "litter"—manure mixed with wood shavings or other bedding materials. And in 2008, Maryland's poultry growers produced a total of nearly 300 million broiler chickens, according to statistics from the Delmarva Poultry Industry. The manure is rich in nitrogen and phosphorus—natural fertilizers—and farmers use some of it on Eastern Shore crops. But do the math: Six hundred million pounds of manure divided by the Chesapeake Bay's 64,000-square-mile watershed works out to about four and a half tons of chicken manure per square mile, every year. And where animal manure is left out in the open, rainfall washes it from field to ditch, from ditch to creek, creek to river, and ultimately into the bay. The nutrients fertilize explosive algae blooms that can use up the limited supply of oxygen mixed into the water, creating dead zones.

The poultry industry is under pressure to clean up the excess manure. But big companies like Perdue Farms say the manure is not their responsibility. Perdue's arrangement with the farmers who raise its birds works like this: from chick to broiler, Perdue owns the birds; the growers own the shit.

Maryland has a state law requiring farmers who store manure or spread it on their fields to minimize runoff into nearby streams and rivers. Farmers have to file written "nutrient management" plans with the state. But after lobbying from the Farm Bureau and the poultry industry, the Maryland General Assembly kept the plans away from public scrutiny and turned the job of enforcing the plans over to the state Department of Agriculture. In 2006, eight years after the law was passed, more than onethird of those farmers still had not filed nutrient management plans. The Agriculture Department says 95 percent of the farmers now have plans, but enforcement remains lax.

"There are chicken growers out there that do more than they have to do," Phillips says. "They put in very wide buffer strips [of shrubs, trees, and grasses] to filter the runoff. At their own expense they put in cement pads to hold the manure. … We know what works, and some people are doing it.

"And some people," she adds, "are digging a trench from the manure pile to the nearest ditch, and that runoff ends up in the bay."

Soon after Fox was appointed, the EPA began signaling that the lax regulation would change. Late last year, the EPA and state officials held meetings around the Eastern Shore, warning farmers that the federal agency planned to crack down on manure runoff. Many Maryland chicken growers would have to get permits from the government for the first time or risk being fined for violating the Clean Water Act. This was a major change, and after twentyseven years of lowered expectations, it was an unwelcome one. Some farmers argued that they had taken steps that go far beyond what the average city dweller has done to protect the bay. They had a point. Rainwater falling on developed lands collects a witches' brew of chemicals that contribute between 9 and 17 percent of the bay's three main pollutants. The amount of pollution from urban and suburban land is on the increase, and the new bay strategy calls for Baltimore and other urban areas to reduce polluted runoff. But farm runoff is still a larger pollution source and a top priority in the EPA's new enforcement effort.

At the meetings, some poultry growers aimed their wrath at the waterkeeper. Phillips says she was often booed on the way in, heckled when she tried to speak, and cursed on the way out. "What I came up against, time and time again, was that the ag community was not interested in working with anybody outside their own community," Phillips says. "After five or six instances of being cursed and booed and being told to sit down … I got to the point where I said, ‘Nothing else is going to work. It's time to create a poultry situation.'"




Last September Phillips and a volunteer pilot were surveying the Eastern Shore, accompanied by two visitors from the Waterkeeper Alliance's New York headquarters and a reporter from the Wall Street Journal. The environmentalists noticed a large pile of what looked like manure on a farm near the Pocomoke River. A trench ran from the pile to the farm's drainage ditch, which ultimately flowed into the river, Phillips says. The group photographed the scene from the air. Over the next several weeks Phillips took water samples downstream of the farm from a public road nearby. When the lab results showed high levels of e. coli, a family of bacteria that indicate the presence of human or animal waste, Phillips began gathering evidence for a lawsuit.

In March the Assateague Coastal Trust, the Assateague Coastkeeper, the Waterkeeper Alliance, and Kathy Phillips sued Perdue Farms and two of its chicken growers, Alan and Kristin Hudson of Berlin—the owners of the farm the environmentalists had photographed from the air—accusing the farmers and the poultry company of violating the Clean Water Act. Citizens' groups have successfully used the same legal strategy to win lawsuits against big livestock operations in Alabama and Kentucky, says Jane Barrett, associate professor and director of the University of Maryland Environmental Law Clinic, which is representing the environmentalists. But this is the first time citizens have brought a Clean Water Act lawsuit against a big poultry company in the Chesapeake Bay region.

Three days after the lawsuit was filed, Perdue Farms Chairman and CEO Jim Perdue went to Annapolis and met with the entire Eastern Shore delegation. Perdue called the case "one of the largest threats to the family farm in the last fifty years."

Some Eastern Shore legislators were so upset about the lawsuit—and the fact that a state university was representing the case—that they filed a bill in the General Assembly threatening to cut off $250,000 in funding to the university's law school unless all of the school's twenty or more legal clinics turned over their clients' names and budgets for the last two years. That sparked a controversy that landed on the front page of the New York Times. The president of the American Bar Association condemned the Maryland legislators' threats, as did about four hundred other attorneys and law professors. By the time the affair ended in a compromise that protected the law clinics' confidential client records, people all over the country knew that a bunch of law students had accused Perdue Farms of polluting the Chesapeake.

As Urbanite went to press, the parties to the lawsuit were waiting for a federal judge to decide whether to hold hearings in the case. Perdue maintains its innocence. Company spokesman Luis A. Luna says the pile that the waterkeepers photographed was not chicken manure at all, but Ocean City sewage sludge that was being used as a fertilizer on the farm. "The waterkeepers don't seem to know their basic materials," Luna says.

In any case, he says, Perdue is not responsible for any pollution that might have occurred. "When it comes to the raising of the chickens … these farmers do whatever they want. We have no enforcement power over them."

The Hudsons could not be reached for comment. Their attorney, Hugh Cropper IV, did not return Urbanite's calls.

Meanwhile, the waterkeepers have become disillusioned with the state's ability to enforce state and federal pollution laws, say Phillips and Barrett. The group, known collectively as the Waterkeepers Chesapeake, filed an administrative petition with the EPA, asking the federal agency to strip the Maryland Department of the Environment of its authority to issue and enforce water pollution permits. The petition lists more than a dozen examples of suspected pollution cases that the waterkeepers believe the department mishandled.

"There are concerns about the enforcement programs, and a lot of it is valid," says department spokesperson Dawn Stoltzfus. But she adds that state Environment Secretary Shari Wilson made enforcement a priority in 2009. Last year the agency reported handling 44 percent more enforcement cases than in 2008 despite state budget cuts.

But the workload is increasing. The chronically understaffed agency is now responsible for administering a federal permit program for livestock farms. Most Maryland chicken farmers were exempt under that nationwide program's old rules. But the EPA recently made the program stricter, and more than five hundred Maryland chicken farms have applied for the permits. And the EPA's new bay cleanup strategy increases the states' burdens even more. It relies on a provision of the Clean Water Act that calls on the states to consider every water pollution permit they issue in the context of the health of nearby waters and the bay as a whole. That means that state regulators will sometimes have to tell industries, farmers, or cities to drastically cut their pollution for the sake of the bay. The state agencies will more than likely end up having to defend some of those decisions in court—something they may be unable or unwilling to do.

Fox admits the Obama administration's strategy will strain the bay states' environmental agencies. "There's no question that we are going to be putting increased demands on permit writers and enforcement personnel, and the capacity of state agencies is more strained today than it's ever been," he says. "Many in the development sector and the industrial sector believe we are pushing too hard and too fast."

But some longtime environmentalists believe the feds and the bay states still aren't pushing hard enough. "There's a huge disconnect between the scientific evidence and the political will," says former Republican Congressman Wayne Gilchrest, who teaches environmental policy at Salisbury University. "What has to happen is tough political leadership—tough, knowledgeable, competent, informed political leadership. I think Obama has the potential to do that, Martin O'Malley has the potential to do that. It's just that they have to say, ‘This is a priority, and this is what we're going to do.'"

And if the political leaders don't follow through? Well, the waterkeepers could always file another lawsuit—and so could any other citizen, for that matter.




Barrett, the law clinic director, says the waterkeepers and other groups that file citizen lawsuits are doing exactly what Congress wanted them to do back in 1970 when it passed the original Clean Water Act. "There was a recognition back then that because of the complexity of the issues involved, it would be impossible for state or federal governments to fully enforce the law," Barrett says. So Congress included explicit language ensuring that citizens could sue to stop pollution.

The environmental laws of the early 1970s belong to a special category, Barrett says. "They're what we call ‘aspirational' laws." In the case of the Clean Water Act, "Congress aspired for all the water bodies in the United States to be fishable and swimmable. They couldn't just make that happen. But they set up mechanisms where you have to keep pushing to get where you want to be."

Are we entering a new era of aspirations? Maybe so. There's renewed hopefulness in the air. But there's also widespread agreement—as close to unanimous as environmentalists ever get—that they have to back up their aspirations with action. It's either that or lose the bay.

The EPA's new restoration strategy acknowledges citizens' role in this effort. It calls for creating more than three hundred new access points where the public can spend time on the bay. The theory is that people who enjoy the bay will vote for politicians who protect it. A summary of the strategy puts it like this: "Ultimately, meeting the water quality, habitat restoration and land conservation goals described in this strategy depends on engaged citizens who support stewardship … and take personal action to carry it out."

For some people, personal action means planting native trees or driving a hybrid car. For Phillips, it means taking on one of the biggest agribusinesses in the nation, a company with $4.6 billion in annual sales, with a legal team made up mostly of ten law students and their professor.

"You can't be part of the environmental community and walk away from what the real problems are," Phillips says. "It's not about having more meetings and appointing more committees or stakeholder groups. It's about solving the problem now.

"You have to stand up for the resource. That's your job."